EXHIBIT 10.24(i)
CONFIDENTIAL AND LEGALLY PRIVILEGED
SCOTT G. MACKIN
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of January,
1994, by and between OGDEN PROJECTS, INC., a Delaware corporation maintaining
its principal office at 40 Lane Road, Fairfield, New Jersey (the "Company")
and Scott G. Mackin, now residing at 19 Hall Road, Chatham, New Jersey 07928
(the "Employee").
WITNESSETH:
WHEREAS, the Employee is currently serving as President and Chief
Operating Officer of the Company, a position he has held since January 1991;
and
WHEREAS, the employment agreement under which the Employee is currently
employed is a three (3) year agreement entered into on June 1, 1990 and which
on December 31, 1993 began to run on a year to year basis (the "Old
Agreement") and which incorrectly reflects the Employee's title as Executive
Vice President, General Counsel, Secretary and Managing Director; and
WHEREAS, the Company and Employee desires to terminate the Old Agreement
and enter into a new employment agreement with terms and conditions similar
to the Old Agreement; and
WHEREAS, the Company desires to ensure that the Employee will continue
to be available to provide services in the capacity of President and Chief
Operating Officer in the future, which services are significant to the
Company's long-range prospects and the long-range prospects of the Company's
subsidiaries (the Company and its subsidiaries are hereinafter referred to as
the "OPI Group"); and
WHEREAS, to induce the Employee to continue to provide such services,
the Company is offering to provide the Employee with the compensation,
benefits and security provided for in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT/CAPACITY/TERM.
The Company agrees to and does hereby continue to employ the Employee,
and the Employee agrees to and does hereby continue in the employ of the
Company upon the terms and conditions set forth in this Agreement. Such
employment shall be in an executive capacity as President and Chief Operating
Officer. Such employment shall commence on January 1, 1994 and shall
continue through December 31, 1996, and from year to year thereafter subject
to the right of the Employee or the Company to terminate such employment as
of December 31, 1994, or any subsequent December 31, by written notice given
to the other party at least sixty (60) days prior to such termination date
stating an intention to so terminate such employment. Termination by the
Company, in accordance with the provisions of the preceding sentence, shall
obligate the Company to make a severance payment as provided in Paragraph 9.
hereof. Otherwise, termination by either party, in accordance with the
provisions of the above referenced sentence, shall not require a statement of
the reason or cause for such termination and shall not be deemed a breach or
violation of this Agreement by the party giving such notice. As used in this
Agreement, the phrase "term of this Agreement" shall be deemed to include the
period subsequent to the date hereof and prior to termination of this
Agreement; however, such phrase shall not be construed as limiting the
enforceability by either party of any rights which survive termination of
this Agreement.
2. TIME AND EFFORT/ABSENCES.
During the term of this Agreement, the Employee shall devote his entire
time and attention during normal business hours to the business of the
Company and the OPI Group, subject to the supervision of the Board of
Directors of the Company, and he shall not engage in any other business
activity whether or not such business activity is pursued for gain, profit,
or other pecuniary advantage, but this restriction shall not be construed to
restrict the Employee (i) from performing services as a member of the Board
of Directors, Board of Trustee or the like of any non-profit entity for which
the Employee receives no compensation, provided that, such services do not
unreasonably interfere with the ability of the Employee to perform the
services and discharge the responsibilities required of him under this
Agreement, and (ii) from investing his assets in such form or manner as will
not require any services on the part of the Employee in the operation of the
business of the entity in which such investments are made. The Employee
shall be excused from rendering his services during reasonable vacation
periods and during other reasonable temporary absences as authorized from
time to time by the Board of Directors of the Company. At the date hereof,
the principal office of the Company is located in Fairfield, New Jersey,
considered to be a New York suburb and part of the metropolitan New York
area. It is understood that the Employee will not be required to relocate
from the metropolitan New York area to discharge his responsibilities under
this Agreement.
3. CORPORATE OFFICES.
If elected, the Employee will serve, without additional compensation, as
an officer and director (or in either capacity) of the Company and the OPI
Group.
4. SALARY/BONUS/OTHER BENEFITS.
In consideration of the services and duties to be rendered and performed
by the Employee during the term of this Agreement, the Company agrees to pay
and provide for the Employee the compensation and benefits described below:
(a) Consistent with the Company's policy concerning its
executives, the Executive's annual salary shall be reviewed by the Board of
Directors or an appropriate committee of the Board of Directors of the
Company on a calendar year basis, with any increases therein being within the
sole discretion of the Board of Directors or an appropriate committee of the
Board of Directors and shall become effective on March 1st of the following
year. During January and February of 1994, the Employee will be paid on the
basis of his 1993 salary. Commencing March 1, 1994, the minimum annual
salary payable to the Executive under this Agreement shall be in the amount
of Four Hundred Thousand and 00/100 Dollars ($400,000), payable in equal
monthly or bi-weekly installments.
(b) An annual incentive bonus in such amount as may from time to
time be fixed by the Board of Directors or an appropriate committee of the
Board of Directors of the Company, provided that in determining the annual
incentive bonus the Board of Directors or appropriate Committee shall utilize
standards which are reasonably applied to the Employee and other executives
of the Company who furnish services of comparable significance, on a
non-discriminatory basis.
(c) Other Benefits. It is intended that the Company shall
continue to provide the Employee with benefits at least as favorable as
benefits provided on behalf of other executives of the Company and the OPI
Group who furnish services of comparable significance, as they may exist from
time to time. Such benefits presently include Group Life Insurance, Group
Health Insurance, Automobile Allowance, and Pension and Profit Sharing Plans.
Except as otherwise provided herein, any such participation shall be in
accordance with the provisions of such plans and nothing contained in this
Agreement is intended to or shall be deemed to affect adversely any of the
Employee's rights as a participant under any such plan. Nothing herein shall
prevent the Company from modifying or discontinuing any benefit plan on a
consistent and non-discriminatory basis applicable to all such executives.
5. EXPENSE.
The Employee shall be reimbursed for out-of-pocket expenses incurred
from time to time on behalf of the Company and the OPI Group or in the
performance of his duties under this Agreement, upon the presentation of such
supporting documents and forms as the Company shall reasonably request.
6. DISABILITY/DISABILITY BENEFIT.
In the event that the Employee is incapable because of physical or
mental illness of rendering services of the character contemplated hereby,
for a period of six (6) consecutive months, the Board of Directors of the
Company may determine that the Employee has become disabled. In the event of
such a determination of disability, the Company shall have the continuing
right and option while such disability continues to terminate this Agreement
by notice in writing to the Employee, effective thirty (30) days after such
notice of termination is so given, unless, within such thirty (30) day notice
period, the Employee resumes rendering full-time services of the character
contemplated hereby. The incapacity due to physical or mental illness to
render the services of the character contemplated hereby, shall not
constitute a breach of this Agreement by the Employee. If this Agreement is
terminated by the Company as a result of a determination of disability, as
aforesaid, the Company shall be obligated to continue the salary and benefits
of the Employee as provided in Paragraph 4 for a period equal to the greater
of (a) twelve (12) months, or (b) such longer period as may be determined by
the Board of Directors of the Company, in each case reduced by any disability
insurance benefits provided for the benefit of the Employee at the expense of
the Company.
7. DEATH/DEATH BENEFIT.
In the event of the death of the Employee during the term of this
Agreement, this Agreement shall terminate and the Employee's salary shall
continue to be paid to his designated beneficiary or, if none, to his
personal representative, through the last day of the month in which such
death occurs. In addition, the Employee, his personal representative(s)
and/or his beneficiaries will be entitled to such death benefits as are
provided to Employee under Paragraph 4 hereof.
8. COMPANY STOCK OPTION PLAN.
The Board of Directors of the Company has awarded the Employee
non-qualified stock options to purchase Thirty-five Thousand (35,000) shares
of the Company Common Stock under the Company's Employees' Stock Option Plan
(the "Employees' Plan"). If the employment of the Employee terminates under
circumstances entitling him to a Severance Payment (as defined in Paragraph
9.), he shall thereupon be entitled to exercise any and all options granted
to him under the Employees' Plan to the extent permitted pursuant to the
terms and conditions of the Employees' Plan.
9. SEVERANCE PAYMENT.
If the Company gives notice to terminate in accordance with Paragraph 1
or if the employment of the Employee is terminated at any time (i) by the
Employee for Good Reason (as defined in Paragraph 10), or (ii) by the Company
for any reason other than for Cause (as hereinafter defined), the Company
will be obligated to pay to the Employee in cash a severance payment equal to
the product of (i) and (ii); where (i) shall equal the sum of (A) the
Employee's annual salary at the time of such termination, and (B) the
Employee's annual incentive bonus during the twelve (12) month period ending
with the close of the month in which such termination of employment occurs
(the "Date of Termination"), but not less than the incentive bonus paid to
the Employee in January 1994 for services rendered during 1993, which was
Three Hundred Thousand and 00/100 Dollars ($300,000), divided by twelve (12);
and where (ii) shall be thirty-six (36). Termination of the Employee's
employment on account of his disability, death or retirement (as defined in
this Agreement) will not be considered a termination of the Employee's
employment by the Company and will not require the Company to pay and provide
any Severance Payment. No Severance Payment will be required if the
employment of the Employee is terminated by the Company for Cause (as
hereinafter defined) or by the Employee (other than for Good Reason as
defined in Paragraph 10) or if the Employee gives notice to terminate in
accordance with Paragraph 1. The Severance Payment provided herein is
provided in order to reinforce and encourage the continued loyalty,
attention, and dedication of the Employee to the Company's business and
affairs without the concerns which normally arise from the possibility of a
loss of employment security. As used herein, the terms "Retirement" and
"Cause" shall have the following meanings, respectively:
(a) Retirement. Termination of the Employee's employment on
account of "Retirement" shall mean termination on or after the Employee's
normal retirement date in accordance with the terms of the Company's pension
plan (or any successor or substitute plan or plans of the Company or of any
subsidiary of the Company under which the Employee may be a participant); and
(b) Cause. Termination by the Company of the Employee's
employment for "Cause" shall mean termination as a result of (i) the willful
and continued failure by the Employee to devote the time, attention and
effort necessary to perform substantially the services contemplated by this
Agreement in a manner consistent with the Employee's past performance (other
than any such failure resulting from the Employee's incapacity due to
physical or mental illness) after a written demand for substantial
performance is delivered to the Employee by a member or representative of the
Board of Directors of the Company which specifically identifies the manner in
which it is alleged that the Employee has not substantially performed such
services, or (ii) the willful engaging by the Employee in gross misconduct
which is materially and demonstrably injurious to the Company; provided that,
no act, or failure to act, on the Employee's part shall be considered
"willful" unless done, or omitted to be done, in bad faith and without
reasonable belief that such action or omission was in, or not apposed to, the
best interests of the Company. It is also expressly understood that the
Employee's attention to or engagement in matters not directly related to the
business of the Company shall not provide a basis for termination for Cause
if such attention or engagement is authorized by the terms of this Agreement
or has otherwise been approved by the Board of Directors of the Company.
Anything in this Agreement to the contrary notwithstanding, the Employee's
employment may not be terminated for Cause unless and until there shall have
been delivered to the Employee a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of
the Board (after reasonable notice to the Employee and an opportunity for the
Employee, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Employee was guilty of the
conduct set forth in clause (i) or (ii) of this subparagraph (b) and
specifying the particulars thereof in detail. Except as otherwise provided
in Paragraphs 1 and 6, no purported termination by the Company of the
Employee's employment which is not justified as a termination of the
Employee's employment for Cause shall be effective.
10. TERMINATION BY THE EMPLOYEE FOR GOOD REASON.
The termination by the Employee of his employment for "Good Reason"
shall be deemed a justifiable termination of his employment and shall excuse
the Employee from the obligation to render services as provided in Paragraph
2 hereof. Upon such termination, the Employee shall be entitled to the
Severance Payment in accordance with the provisions of Paragraph 9 hereof.
As used herein, the phrase "Good Reason" shall mean:
(a) a change in the Employee's status, title or position(s) as an
officer of the Company in the executive capacity set forth in Paragraph 1
hereof, which in his reasonable judgment, does not represent a promotion from
or enhancement of his status, title and position, or the assignment by the
Board of Directors of the Company to the Employee of any duties or
responsibilities which, in his reasonable judgment, are inconsistent with
such status, title or position, or any removal of the Employee from or any
failure to reappoint or reelect him to such position, except in connection
with a justifiable termination by the Company of the Employee's employment
for Cause or on account of disability, the Retirement or death of the
Employee or the termination by the employee of his employment other than for
Good Reason;
(b) a reduction in the Employee's annual salary or a failure by
the Company to pay to the Employee any installment of the annual salary
required by Paragraph 4 hereof, which failure continues for a period of
twenty (20) days after written notice thereof is given by the Employee to the
Company;
(c) the Company's requiring the Employee to be based anywhere
other than the Fairfield, New Jersey area, except for required travel on the
business of the Company or the OPI Group to an extent substantially
consistent with the business travel obligations which the Employee has
previously undertaken on behalf of the Company or the OPI Group;
(d) the failure by the Company to obtain the assumption of this
Agreement in form and substance to the reasonable satisfaction of the
Employee by any Successor (other than by merger or consolidation for which no
separate assumption is necessary) as referred to in Paragraph 17; or
(e) any refusal by the Company to allow the Employee to attend to
matters or engage in activities not directly related to the business of the
Company which is permitted by this Agreement or which, prior thereto, was
permitted by the Board of Directors of the Company.
11. NOTICE OF TERMINATION.
Any purported notice of termination of the Employee's employment (other
than a Notice given by either party pursuant to Paragraph 1 hereof) shall be
communicated in writing and delivered to the other party as provided in
Paragraph 18 (hereinafter a "Notice of Termination"). For purposes of this
Agreement a "Notice of Termination" shall mean a notice which specifies the
termination provision relied upon by the party giving such notice and shall
set forth in detail such facts and circumstances claimed by said party to
provide a justified basis for termination of the Employee's employment under
the provision(s) so indicated.
12. TRADE SECRETS, ETC.
The Employee acknowledges that prior to his initial employment by the
Company he had no knowledge of the formulae, processes or methods of
manufacture or other trade secrets of the Company. Upon the termination of
his employment, the Employee agrees forthwith to deliver up to the Company
notebooks and other data relating to research or experiments as conducted by
him or relating to the products, formulae, processes or methods of
manufacture of the Company.
13. CUSTOMER LIST.
The Employee recognizes and acknowledges that the written list of the
customers of the Company, its subsidiaries and affiliates, as it may exist
from time to time, is a valuable, special and unique asset. The Employee
agrees that he will not during the term of his employment or within five (5)
years thereafter, use for his own personal benefit or disclose the written
list of the customers of the Company, its subsidiaries and affiliates or any
part thereof, to any person, firm, corporation, association or other entity
for any reason or purpose whatsoever.
14. LIMITED COVENANT NOT TO COMPETE.
If the employment of the Employee hereof is terminated (i) by the
Employee pursuant to Paragraph 1 hereof or (ii) by the Company for Cause (as
defined in Paragraph 9.(b) above), then in either case (y) the Employee will
not, for a period of two (2) years from such termination of employment,
within the territorial confines of the United States of America, directly or
indirectly, own, manage, operate, control, be employed by, participate in, or
be connected in any manner with the ownership, management, operation or
control of any business in competition with the business conducted by the
Company at the time of such termination, and (z) the Employee will, for a
period of two (2) years from such termination refrain from carrying on a
business similar to that presently carried on by the Company within the
states in which the business of the Company has been carried on, so long as
the Company carries on like business therein.
15. INJUNCTIVE RELIEF.
In the event of a breach by the Employee of the provisions of Paragraphs
12, 13 or 14 during or after the term of this Agreement, the Company shall be
entitled to an injunction restraining the Employee from violation of such
paragraph. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedy it may have in the event of breach of this
Agreement by the Employee.
16. CERTAIN PROPRIETARY RIGHTS.
Employee agrees to and hereby does assign to the Company all his right,
title and interest in and to all inventions, whether or not patentable, which
are made or conceived solely or jointly by him:
(a) At any time during the term of his employment by the Company
in an executive, managerial, planning, technical research or engineering
capacity (including development, manufacturing, systems, applied science and
sales), or
(b) During the course of or in connection with his duties during
the term of this Agreement, or
(c) With the use of time or materials of the Company. The
Employee agrees to communicate to the Company or its representatives all
facts known to him concerning such inventions, to sign all rightful papers,
make a rightful oaths and generally to do every thing possible to aid the
Company in obtaining and enforcing proper patent protection for all such
inventions in all countries and in vesting title to such inventions and
patents in the Company. For the purpose of this Agreement, the subject
matter of any application for patent naming Employee as a sole or joint
inventor filed during the course of employment or within one year subsequent
to the termination thereof shall be deemed to be an invention made or
conceived by him during the course of his employment by the Company and
assignable to the Company hereunder, unless the Employee establishes by a
preponderance of the evidence that such invention was made or conceived by
him subsequent to termination of his employment hereunder. At the Company's
request (during or after the term of this Agreement) and expense, the
Employee will promptly execute a specific assignment of title to the Company,
and perform any other acts reasonably necessary to implement the foregoing
assignment.
17. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of:
(a) The Company, and any successors or assigns of the Company,
whether by way of a merger or consolidation, or liquidation of the Company,
or by way of the Company selling all or substantially all of the assets of
the Company, or a division thereof, to a successor entity; however, in the
event of the assignment by the Company of this Agreement, the Company shall
nevertheless remain liable and obligated to the Employee in accordance with
the terms hereof; and
(b) The Employee, his estate, his executors, administrators, heirs
and beneficiaries.
18. NOTICE.
Any notice or other